Dick v. The Queen

Supreme Court of Canada – [1985] 2 S.C.R. 309

British Columbia Application of laws to AboriginalsIndiannessJurisdiction over Indians

Summary

Delivered the same day as Jack and Charlie.

The Court describes the essence of “Indianness”, which is of federal jurisdiction. Indianness is what make an Indian “Indian”.

The Court specifies the criteria that a provincial legislation must meet in order to apply to Indians, even though it touches Indianness : it must be of general application, its objective must not be to limit the group’s right, et must not infringe on a treaty or a federal legislation. In this case, the Court considers that the provincial law applies even though it touches Dick’s aboriginal rights and Indianness because it meets the criteria.

The facts in this case happened before the enactment of section 35 of the Constitution Act of 1982. Today, this would prevent a provincial law from infringing on aboriginal rights without justification.

Issue

Is year-long hunting for subsistence central to the culture and lifestyle of the Shuswap so that it cannot be restricted by the Wildlife Act without attacking their core of “Indianness”?

If so, is the Wildlife Act constitutionally inapplicable because it is a provincial legislation affecting the core of “Indianness”, or was it incorporated into federal legislation with the application of sect. 88 of the Indian Act?


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